Citation Nr: 1806593 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 15-37 038 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to a total disability rating based on individual unemployability, due to service-connected disabilities (TDIU). REPRESENTATION The Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his son ATTORNEY FOR THE BOARD P. Franke, Associate Counsel INTRODUCTION The Veteran had active service in the United States Army from April 1953 to April 1956. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2012 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Veteran appeared at a November 2017 Central Office hearing before the undersigned Veterans Law Judge. A transcript has been associated with the claims file. In a November 2014 decision, the Board denied the Veteran's appeal in regard to entitlement to a rating in excess of 60 percent for rheumatic heart disease and entitlement to service connection for left popliteal and peroneal nerve palsy, causing numbing to the left foot, as secondary to the service-connected rheumatic heart disease. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). In July 2015, the Court granted a Joint Motion for Partial Remand (JMPR) of the Veteran and the Secretary of Veterans Affairs, vacated the November 2014 Board decision to the extent that the Board did not remand to the RO the issue of whether the Veteran was entitled to a TDIU and remanded the matter to the Board for action consistent with the terms of the JMPR. In its August 2015 remand, the Board stated that the issue of entitlement to an increased disability rating in excess of 20 percent for paralysis, left external popliteal nerve under 38 U.S.C. § 1151, was raised by the Veteran in a May 2015 letter, but had not been adjudicated by the Agency of Original Jurisdiction (AOJ). The Board further noted that it did not have jurisdiction over the issue and referred it to the AOJ for appropriate action. 38 C.F.R. § 19.9 (b). This appeal was processed using the Veterans Benefits Management System (VBMS) and the Legacy Content Manager (LCM) (formerly Virtual VA) electronic claims files. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND In a July 1956 rating decision, the Veteran was service-connected for rheumatic heart disease at 30 percent from April 17, 1956. In a December 2006 rating decision, the Veteran's disability rating for rheumatic heart disease was increased to 60 percent, effective May 31, 2006. In a March 2015 rating decision, compensation for the Veteran's paralysis, left external popliteal nerve, was awarded at a 20 percent disability rating, also effective May 31, 2006. From the application of the Combined Ratings Table (Table 1) in 38 C.F.R. § 4.25, the combination of the Veteran's service-connected paralysis, left external popliteal nerve at a 20 percent disability rating, effective May 2006, to his rheumatic heart disease at a 60 percent disability rating, effective May 2006, gives the Veteran a combined disability rating of 70 percent. This would indicate that, for the two disabilities, the Veteran's combined rating satisfies the regulatory threshold of a combined rating of 70 percent in order to proceed with a further assessment as to the availability of a TDIU. 38 C.F.R. § 4.16 (a). The Board must still determine whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. However, compensation for the Veteran's left lower extremity paralysis was only comparatively recently established by a March 2015 Board decision, in which a 20 percent disability rating was awarded under 38 U.S.C. § 1151 for the Veteran having suffered a disability as a result of medical or surgical treatment by VA. The disability compensation has been awarded in the same manner as if the disability were service-connected. 38 U.S.C. § 1151; 38 C.F.R. §§ 3.358, 3.361. In September 2015, the Veteran was provided with an SOC, denying the claim to entitlement to a TDIU. In giving reasons for this decision, the SOC relied much on an October 2011 General Medical VA examination for findings pertaining to the Veteran's heart disorder and a February 2012 VA examination/Disability Benefits Questionnaire (DBQ) for Peripheral Nerves Conditions, as it pertained to the Veteran's lower left extremity paralysis. However, those examinations had been conducted as much as three and a half years before compensation at a 20 percent disability rating was awarded for the Veteran's left lower extremity paralysis. In considering whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his heart disorder and his left lower extremity paralysis, and further considering that a rating was awarded for the latter disability only as recently as March 2015, the Board cannot make such a determination without findings made upon examination which address the current effect of the Veteran's heart disorder and his left lower extremity paralysis on his occupational functionality and efficiency. For these reasons, a comprehensive examination(s) is required for the Veteran's disabilities of heart disease, to include rheumatic heart disease, and paralysis, left external popliteal nerve. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Contact the Veteran and/or his representative for information pertaining to any current treatment for his heart disease, to include rheumatic heart disease, and paralysis, left external popliteal nerve, at any VA facility and by any private treatment provider. Obtain any records pertaining to that treatment not yet associated with the claims file and associate them with the claims file. The Veteran's assistance should be requested in obtaining any records of recent treatment as indicated. All attempts to obtain records should be documented in the claims file. 2. After all additional records have been obtained and associated with the claims file, but whether or not records are obtained, schedule the Veteran for an examination(s) with a VA examiner(s) with appropriate specialties to produce findings for heart conditions and findings for paralysis, left external popliteal nerve. The examination(s) should provide findings and diagnoses as to the nature, extent and current severity of the disorders, to include a review of the entire electronic claims file. Specifically, the examiner(s) is/are requested to provide findings which are relevant to the Veteran's functionality, stamina, energy level, fatigue, and any other considerations relevant to occupational efficiency. Findings should be reconciled with other records on file to the extent possible. The complete electronic claims file must be made available to the examiner(s) in conjunction with the examination(s). The examiner(s) should detail all findings. All indicated tests should be accomplished and all findings reported in detail. The examiner(s) should comment on the findings and opinions of other examiners, which appear in the record. In addition, the examiner(s) should acknowledge, address, consider, and discuss all lay evidence in the record pertaining to heart disease, to include rheumatic heart disease, and paralysis, left external popliteal nerve, including the Veteran's November 2017 Board hearing testimony, his lay statements, any lay statements of his wife, family members, friends, co-workers, or others, as well as the Veteran's reports to providers, as they appear throughout the record. 3. After completing the above development and any other indicated development, readjudicate the claim. If the benefits sought are not granted, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond before returning the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).